Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Thursday, 16 July 2015

This Kat has frequently visited the issue of the Nagoya Protocol of access to genetic resources, and the requirement, where the provider country so specifies, to obtain prior informed consent and reach access and benefit sharing agreements with that country in order to access the resources. He has hitherto not specifically addressed the issue of Traditional Knowledge, because it has not been necessary: under the Nagoya Protocol TK is only relevant when it is “associated with genetic resources”, so freestanding TK does not come under the Nagoya system. He has hesitated to write on the subject of TK, because there is a grave risk of offending cultural sensibilities, and this topic is emotive for many people.

Merpel is looking for a definition

The problem with discussion on the topic of TK is that the groups on behalf of whom its recognition and protection are argued are usually groups that have suffered oppression, mistreatment, and economic marginalisation in the past, and in some cases still today. It is hard to detach those issues from the discussion of what TK is and how it is appropriate to protect it. It is therefore difficult to have an objective discussion.

The problem is with lack of discussion is that proponents of protection of TK are advancing moves towards an international treaty to protect TK with insufficient challenge on the basic issues of what it is, and what kind of protection is appropriate. Those who are opposed to such moves are often silent, or engage only in a general way (see the second comment).

The result of this is that there is a very unbalanced dialogue. It seems to this Kat that there are huge problems that do not seem to be adequately addressed. Following on from two other recent contributions on this blog (here and here) about TK, these are this Kat's current concerns.

1) There is no definition of TK
If you want to protect something, it is indispensable to define what it is. WIPO records “There is as yet no accepted definition of traditional knowledge (TK) at the international level.” Astonishingly, the Nagoya Protocol, which creates legally binding obligations internationally in countries which have ratified the treaty, uses the term extensively with no definition of what it means. This Kat suspects that this is not merely a transitory difficulty, but a symptom that there is something very amiss about the idea that TK is a genuine concept that merits special treatment. It seems inherently unlikely that the characteristics claimed for it, for example “knowledge that has ancient roots and is often oral” (as stated here), or that it is "sacred or secret”, are likely to be shared in the hugely varying tribes and communities that apparently hold traditional knowledge. It appears that the only proposed mechanism for arbitrating whether something is TK is that "it is if we say it is", which is circular and non-justiciable.

2) Wider justification for special treatment is lacking
Legal systems are about creating balances between the competing desires and interests of parties. In IP law, for example, this is achieved by varying the period of protection (20 years for patents, life plus 70 years for literary copyright), whether registration is needed (yes for patents, no for copyright), what the criteria are for the right to exist (novelty and inventive step for patents, originality and recordal for literary copyright), the breadth of protection given (absolute monopoly for patents, right to prevent copying only for literary copyright), as well as the scope of the exceptions to the right. These balances are rarely what people want or expect. Potential clients come this Kat who are aghast that they need to spend money to protect their invention; who assume (astonishing but true) that while they are of course free to copy other people’s photographs, any picture that they take will be sacrosanct; or who suppose that they can get monopoly protection on a design that they have copied from someone else. So this Kat takes the view that the fact that someone says that they want or need a particular type or level of protection does not justify the granting of it. That wish has to be balanced against the wider interest.3) The protections that are being sought are unprecedented
We are told that the protections that TK requires are very extensive indeed – the right to prevent its use, whether or not it is secret or confidential, and if use is authorised, the right to control and benefit (including financially) from that use and all developments of it, apparently in perpetuity. This seems astonishingly broad, and for such a special treatment, overwhelming need should be demonstrated, but does not seem to be there.

4) Whose is it anyway?

Who holds the traditional knowledge of turmeric?

TK is never said to be held by one person, it is by groups, by communities, or peoples. Who then has the right of authorisation? What if (as seems very likely) more than one group “holds” the TK? This problem of authorisation, particularly given the wide-ranging rights that are being sought, seems to illustrate that the rhetoric does not map very well onto the reality. In relation to TK, the Indian examples of turmeric and neem are often mentioned, but their use is apparently widespread across India. Can it be really said that any group holds it? Is it seriously argued that it is held by India as a whole?

This Kat is concerned that protection of TK is being offered to marginalised groups in order to atone for past, or even present, mistreatment. But this cannot be a reason to overlook the serious flaws in the whole concept. He wonders whether the protection that is needed is not so much legal protection (in the sense of creating new legal obligations on the rest of the world), but rather recognition and assistance.

12 comments:

Anonymous
said...

Good post. I can't see any justification whatsoever for "protection" of "traditional knowledge" (whatever it is).

It is not the job of the law to specifically protect practices which form part of a group's "cultural or spiritual identity". If that group wants to keep doing them they are already in law free to do so (provided the practices do not contravene the law). If they don't want to use them any more (perhaps because modern medicine has come up with a better solution than turmeric), then that's also fine. Additional defensive protection, as WIPO puts it, is not required - if the knowledge is already in the public domain existing laws prevent its monopolisation by third parties.

As for positive protection, why should very old public knowledge be afforded greater protection than less old public knowledge? The traditional communities are free to exploit TK, but can anyone offer any reasoned justification why other people who also have the knowledge should be prohibited from making use of it?

Protection isn't just sought for "old" knowledge, but also for new knowledge and knowledge yet to be developed. The word traditional is therefore misleading as they request protection to be sought for all knowledge they deem to be traditional, the old, new (as it will be traditional one day!)and the yet to be thought up TK.

The trouble is that this standpoint is predicated on (barely) evolved colonial thinking - that we in the West should be free to exploit TK belonging to indigenous communities but we won't reciprocate and share our knowledge or resources with them (cue the fight over whether TRIPS has limited access to lifesaving drugs for third world nations). This post also ignores the realities - it isn't indigenous communities that are withholding or attempting to block access to TK, but researchers in the West attempting to patent (and therefore claim a monopoly over and prevent access to) TK. See for example, attempts by researchers in the US to file a patent with the USPTO for turmeric for use in wound healing; which was only finally revoked following a two year battle by India's Council of Scientific and Industrial Research. At its heart, Nagoya seeks to address concerns from indigenous communities about the commoditisation of TK and future restrictions being placed on them using it.

All the criticisms made of TK could equally be levelled at IP in Europe/America and have been. Why does TK have to be shoe-horned into narrow and limited ideas of what qualifies for protection, when the law concerning what is protectable (especially copyright) is itself in a constant state of flux. Concerns about Nagoya on both sides of the fence need to be addressed.

It is not the job of the law to specifically protect practices which form part of a group's "cultural or spiritual identity"

I am not sure whether your response is directed at me or the earlier commenter, but most of what you write is simply untrue or not supported by any evidence.

You refer to the turmeric example. This often cited case suffers from a number of problems. As far as I am aware, the patentees were Indian, although working in the US. It was a US patent, so it would not have affected the ability of anyone anywhere else in the world to do anything. The dispute was because the claimed invention was apparently not new, but US patent law at the time did not recognise disclosure abroad that was not in a written publication as novelty-defeating. On any conceivable definition of Traditional Knowledge that the WIPO treaty might agree on, I cannot see how the use of turmeric would fit anyway (as I mentioned in my post).

There are many cited examples of alleged expropriation of Traditional Knowledge that do not stand up to scrutiny. I discussed some in earlier posts.

You say that “Nagoya seeks to address concerns from indigenous communities about the commoditisation of TK and future restrictions being placed on them using it.” It says nothing of the sort. What it actually says is that benefit from the utilisation of genetic resources (whether with or without Traditional Knowledge) must be shared with the country of origin, who then in turn is supposed to share it with the indigenous communities. So at its heart is actually the idea that genetic resources and traditional knowledge have significant monetary value (which I think is a very questionable assumption), and that this should be shared with the place of origin.

In any event, where is the slightest shred of evidence that anyone is seeking to patent TK in order to restrict its use by the indigenous communities from which it came, let alone being successful at it? The paradigm seems highly unlikely in the first place, but even if someone were to try to patent TK, it would likely suffer from lack of novelty, unless the TK were secret (in which case how did the patent applicant get it?); and the country where it came from would be unlikely to be a place worth patenting it. Furthermore, there are exceptions to infringement in most patent laws for private, non-commercial use, which would likely to apply to indigenous communities in any case.

Finally, it is not in relation to what I wrote, but ecclesiastical law relates to the internal governance of churches. It is not “law” in the sense of the law of a country (with a few exceptions in countries with established churches), and it does not "protect" anything.

My comment on ecclesiastical law was in response to the comment by Anonymous at 12.33, I should have made this clearer. S/he stated "it is not the job of the law to specifically protect practices which form part of a group's "cultural or spiritual identity".

It is clear that the law does do this - in the form of Ecclesiastical law which concerns the governance of members of a church and further as concessions given to established religion, from protection from discrimination on religious grounds to bishops sitting in the House of Lords.

Apparently it is only the cultural and spiritual practices of established religions that are worth protecting, which harks back to my earlier point on colonialism.

"Regarding the turmeric example - you state it was a US patent, so it would not have affected the ability of anyone anywhere else in the world to do anything".

So, apparently a US patent cannot be used as a basis upon which to claim priority for a patent anywhere else in the world now.

"The dispute was because the claimed invention was apparently not new, but US patent law at the time did not recognise disclosure abroad that was not in a written publication as novelty-defeating".

Surely this emphasises the need for Nagoya? It was an argument against novelty that defeated the patent, with absolutely no consideration of TK.

"There are many cited examples of alleged expropriation of Traditional Knowledge that do not stand up to scrutiny."

There are legion and they do:

http://www.policyinnovations.org/ideas/innovations/data/000143

http://sites.duke.edu/amazonbiopiracy/case-studies-of-biopiracy-3/

https://en.wikipedia.org/wiki/Maya_ICBG_bioprospecting_controversy

"So at its heart is actually the idea that genetic resources and traditional knowledge have significant monetary value (which I think is a very questionable assumption), and that this should be shared with the place of origin."

People only tend to patent what they believe they can commercialise (hence the requirement for industrial applicability). If it is a "questionable assumption" that TK has or might have monetary value, why are teams of researchers being diverted from other valuable R & D to investigate this (see the Chiapas/University of Georgia example above).

"In any event, where is the slightest shred of evidence that anyone is seeking to patent TK in order to restrict its use by the indigenous communities from which it came, let alone being successful at it?"

"The paradigm seems highly unlikely in the first place, but even if someone were to try to patent TK, it would likely suffer from lack of novelty, unless the TK were secret"

Patenting a modified gene sequence which does not exist in nature seemed highly unlikely too, yet it now happens. Would it really take that much to extract, isolate and purify whatever active compound it is in the plant variety used and claim it as the basis for a patent?

"Country where it came from would be unlikely to be a place worth patenting it. Furthermore, there are exceptions to infringement in most patent laws for private, non-commercial use, which would likely to apply to indigenous communities in any case."

Why should indigenous communities not be able to commercialise their own TK if they are able to do so, or decide to patent it themselves and licence it (thereby retaining control of their own assets). In any event, if they are forced to rely on an exception they will need the financial resources to be able to defend themselves against any future claims of patent infringement and are unlikely to have these at their disposal.

The protection doesn't need to be in the form of a patent - it is clear from Article 5 of the Protocol what is really desired is to be able to reap the benefits of TK, whether these are monetary or otherwise. It seems a fair trade - they share TK and if this results in the development of drugs, vaccines etc these are shared on mutually agreed, fair and equitable terms.

If this was a tangible asset, such as oil, coal etc. located beneath a group of indigenous people and a company simply turned up, drilled it, extracted the asset and disappeared without sharing any of the benefits with that community, it would be recognised as unfair. Why should it be any different for an intangible one?

I agree that there are serious flaws with Nagoya, but "recognition and assistance" rather than legal protection is rightly to be viewed with suspicion.

Your first point seems to admit that there is no evidence, and your speculation appears to be based on “stranger things have happened”. Do you think that this is a reasonable basis for wide-reaching legislation? I would also argue that if someone extracts and isolates an active compound, then they are not using the traditional knowledge anyway, but I don’t expect you to accept that. Anyway, a patent to the active would not be infringed by use of it in native form (otherwise the patent would lack novelty).

In response to your second point, indigenous communities are perfectly free to “commercialise their own TK if they are able to do so, or decide to patent it themselves and licence it”. Why do you suppose they are not? Why is any further legislation needed for this? And your point about relying on the exception requiring funds is not really apt either – if they don’t infringe then they don’t infringe. The world is full of people not infringing patents, we don’t worry about whether they can fund litigation that is not going to happen.

I completely agree that “what is really desired is to be able to reap the benefits of TK”, but this rather contradicts your earlier point that it is all about concern on “future restrictions being placed on them using it”.

This post is primarily not about Nagoya, which is about genetic resources, and the subset of TK that allegedly accompanies them. Nagoya is a done deal and there is not much point highlighting its weaknesses more than I have already done. The active issue now is the further treaty under negotiation that would deal with TK alone.

I don’t know why you are so suspicious about recognition and assistance. It seems far more pertinent than the vague and poorly thought out proposals about creating some kind of sui generis protection for TK, with all the problems set out in my post.

I am afraid that I no longer know which anon is which. The comment at 20.32 was automatically sent to spam from which I retrieved it, and now I wonder whether the comment at 20.33 is from them and not further to the one at 19.22.

Answering the comments at 20.32:

“So, apparently a US patent cannot be used as a basis upon which to claim priority for a patent anywhere else in the world now.”

No, not after the end of the priority year.

“Surely this emphasises the need for Nagoya? It was an argument against novelty that defeated the patent, with absolutely no consideration of TK.”

No, it shows that the real objection was that it was not new. Why would consideration of TK have helped? In any case, as I said before, I doubt that any definition of TK that is come up with would include the turmeric situation.

“There are legion and they do:”

They are indeed legion, but no they mostly don’t. I have checked many examples – which involves not just reading the allegations (which is what your links are) but trying to verify the actual facts. Just because someone calls it biopiracy does not make it so. The first two references you have given do not give enough information for me to easily find out. You do need to look at what was known and what was patented. It is not enough to say “it has something to do with something that came from another country and there was a patent”.

My understanding of the third example (relating to ICBG) is that it is not a case of biopiracy at all – it is the exact opposite. The researchers attempted to reach agreement with the Mayan people, but there was such mistrust that agreement was not possible and the project floundered having produced no results.

Then you refer to genetically modified plants. So by definition they are not “native plant varieties, known, cultivated and used by native people for centuries”. So the patents cannot possibly be used to prevent anyone doing anything with native varieties. The fact that you clearly disapprove of genetically modified plants does not make it use of traditional knowledge.

So I am sorry but I still see no evidence to support the biopiracy paradigm or any need for legislation or benefit that is hoped to be gained from it. I just see some things that you disapprove of that happen to involve plants in other countries.

We have service marks for protecting services rendered by an entire business or company. We have guilds for protecting copyright for a group of people. Why so much of hesitation for recognizing TK as one of the species of IP? IP is all about balancing the right of originators / inventors / companies and users. The very same principle be applied to protecting TK and rewarding TK gatekeepers. There is no reason why it should be treated any differently. Important is to connect the TK gatekeepers with the resources rich benefactors in a mutually meaning-full way.

Further, ALL IP laws dictate the rights for a limited time, then free and open copying - do you really advocate the same for TK? Would not, by its nature, most TK then by definition have eclipsed the limited time aspect and be placed exactly in the same position that you seek to avoid?

IPKat Policies

This page summarises the IPKat policies on guest submissions and comments. If you have posted a comment to one of our blogposts and it hasn't appeared, it may be because it doesn't match our criteria for moderation. To learn more about our guest submissions, comments and complaints policy and the procedure for lodging a complaint click here.

Has the Kat got your tongue?

Just click the magic box below and get this page translated into a bewildering selection of languages!